December 8, 2017

St. Locher Med., P.C. v IDS Prop. Cas. Ins. Co. (2017 NY Slip Op 51732(U))

https://www.beynensonlaw.com/case-law/st-locher-med-p-c-v-ids-prop-cas-ins-co-2017-ny-slip-op51732u/

Court: Appellate Term, Second Department
Decided: December 8, 2017
Citation: 2017 NY Slip Op 51732(U) · 58 Misc 3d 129(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: EUO no-show
Legal questions: No-show: coverage defense or precludable? · No-show defense: insurer's proof (see the maps)

Cite as

St. Locher Med., P.C. v IDS Prop. Cas. Ins. Co., 58 Misc 3d 129(A), 2017 NY Slip Op 51732(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

Omitting scheduled EUO dates from a denial does not make the denial conclusory, vague, or legally meritless. In this assigned no-fault benefits action, the insurer's proof established that the provider failed to appear for duly scheduled EUOs. Applying Quality Psychological Servs., P.C. v Avis Rent-A-Car Sys., LLC, the court rejected the provider's challenge to the denial forms based on their omission of the examination dates. The provider's remaining contentions lacked merit or were raised for the first time on appeal. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the complaint.

Reported in New York Official Reports at St. Locher Med., P.C. v IDS Prop. Cas. Ins. Co. (2017 NY Slip Op 51732(U))

[*1]

St. Locher Med., P.C. v IDS Prop. Cas. Ins. Co.

2017 NY Slip Op 51732(U) [58 Misc 3d 129(A)]

Decided on December 8, 2017

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 8, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-8 K C

St. Locher Medical, P.C., as Assignee of Galen Smith, Appellant,
against
IDS Property Casualty Ins. Co., Respondent.

Kopelevich & Feldsherova, P.C. (Galina Feldsherova, Esq.), for appellant. Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered October 28, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint.

Contrary to plaintiff’s contention, the proof submitted by defendant established that plaintiff had failed to appear for duly scheduled examinations under oath (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Ortho Prods. & Equip., Inc. v Interboro Ins. Co., 41 Misc 3d 143[A], 2013 NY Slip Op 52054[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Furthermore, “the failure to set forth the dates of the scheduled examinations in the denial of claim form[s] did not render the denial[s] conclusory, vague, or without merit as a matter of law” (Quality Psychological Servs., P.C. v Avis [*2]Rent-A-Car Sys., LLC, 47 Misc 3d 129[A], 2015 NY Slip Op 50378[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Plaintiff’s remaining contentions lack merit or were raised for the first time on appeal.

Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 08, 2017

Legal questions (2)

Questions of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

No-show: coverage defense or precludable?

Open the full map

Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?

This decision: Timely denial required as part of the no-show defense, and the insurer showed it

Held that omitting the dates of the scheduled examinations from the denial forms did not render the EUO no-show denials conclusory, vague or without merit.

Coverage defensePrecludable: denial lackingPrecludable: denial timelyThis decisionCites it or cited by itCited or followed

Of the 500 decisions on this question in the Second Department courts and the Court of Appeals, 334 (this one included) are in the same category.

No-show defense: insurer's proof

Open the full map

Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?

This decision: Insurer proved mailed, compliant requests and the nonappearance; claimant's answers rejected

Held the insurer's proof established that the provider failed to appear for duly scheduled examinations under oath, rejecting the provider's challenge.

Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decisionCites it or cited by itCited or followed

Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 525 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 09604) FollowedAn insurer may deny benefits retroactively to the date of loss for failure to attend reasonably required IMEs under 11 NYCRR 65-1.1.
Ortho Prods. & Equip., Inc. v Interboro Ins. Co. (2013 NY Slip Op 52054(U)) FollowedThe insurer established timely EUO notices and denials and both assignors' nonappearances, warranting dismissal of their assigned claims.
Quality Psychological Servs., P.C. v Avis Rent-A-Car Sys., LLC (2015 NY Slip Op 50378(U)) FollowedA denial based on two missed EUOs is not conclusory, vague or meritless as a matter of law merely because it omits the scheduled dates.

Similar decisions

All Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2014 NY Slip Op 51787(U))The insurer's affidavits established timely mailing of EUO notices and denials and the provider's failure to appear.
K.O. Med., P.C. v IDS Prop. Cas. Ins. Co. (2019 NY Slip Op 50687(U))The insurer's EUO request was a nullity for four claims because it was sent more than 30 days after receipt.
All Boro Psychological Servs., P.C. v Hartford Ins. Co. (2012 NY Slip Op 51849(U))The insurer's affidavits established timely mailing of EUO notices and the denial, and the provider's failure to attend either EUO. In this action for assigned no-fault benefits, the provider challenged the insurer's proof supporting summary judgment dismissing the complaint.
Careful Complete Med., P.C. v Hartford Ins. Co. (2017 NY Slip Op 51858(U))The insurer established the provider's EUO nonappearance and proper mailing of the scheduling letters and denial forms.
Flatlands Med., P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 50071(U))The provider's EUO nonappearances defeated coverage, and its objections to the requests could not be considered absent any alleged response.